Stout v. State

Caldwell, J.

On June 4, 1891, Sam Stout was indicted for larceny. In due course of time be was tried and convicted. Upon appeal in error to *406 the present term of this Court, the judgment of the Circuit Court was, on a former day, reversed and a nolle prosequi entered by the State.

The case is now before us on the motion of the Attorney-general, and we .are asked to determine whether the State or the county shall pay the costs accrued on behalf of the State.

Under the Code (§ 5585, subsec. 2, and § 5586), they were taxable to the State, the offense charged being punishable “by confinement in the penitentiary.” By Secs. 1 and 2, Ch. 22, Acts 1891 (Extra Session), that provision of the Code was so amended and changed as to make the county liable for such costs in such a case. That act was passed and approved on September 19, 1891, and took effect “ from and after its passage.”

Which of the two statutes applies to this case, the indictment having been found before the passage of the amendatory Act, and the nolle prosequi having been entered afterward?

The intent of the Legislature does not very clearly appear. Yet, we are of opinion that the recent Act contemplates only such prosecutions as may be commenced after its passage,'and that cases then pending are not embraced within its provisions. This construction gives the Act prospective effect only. A different construction would render it retrospective, in part at least.

The costs in this case are, therefore, taxable under the Code provisions.